The real issue behind the Mazur decision

Reading judgments, I often wonder whether the Judges are oblivious to the real dynamic of the litigation before them or simply turn a blind eye. Whatever the reality, the judgments, in particular on appeal, seem  invariably focused on the narrow technical legal points presented by the parties.

Much litigation is now disfigured by cost and delay. Clearly this is noticed and mentioned in judgments but it elicits what might be described as a judicial sigh. A high level disapproval and a regret will do little to influence the dynamics involved in excessive costs and delay. These do not occur coincidentally but result from a protracted and overcomplicated litigation.  Deciding the issues as presented by the parties simply acquiesces in this.

At the much discussed decision in Mazur is in point. The decision, I believe, is correct in statutory interpretation and consistent with established legal practice. It can be distilled in practical terms into a simple proposition that unauthorised and, indeed, unqualified individuals can in effect conduct litigation provided there is sufficient evidence of supervision and monitoring by an authorised person; that is a solicitor.

Insofar as the decision relates to persons who are qualified, such as legal executives but not solicitors, it cannot in any way be controversial.  I have encountered many experienced and competent legal executives in my career. Many of them are more skilled at litigation than some junior solicitors; indeed, some not so junior solicitors as well. Without in any way I hope sounding patronising, these legal executives are also suitably able to recognise what they should or should not be doing. In practical terms, this results in appropriate supervision and monitoring.

Mass litigation and “Fee Earner” culture

What is more problematical is the prospect of what might be described as sausage factory law firms handling mass litigation, where a bulk of the work is undertaken by not merely unauthorised but unqualified individuals described as ‘fee earners’. The term in itself is interesting. It only indicates that the individual in question is subject to charge for their services. It says nothing about the qualification, capability or experience of that individual.

The guideline rates for “trainee solicitors, paralegals and other fee earners is £120 per hour nationally and up to £210 in London”. Whilst trainee solicitors and paralegals will have some legal training, they are likely at the very beginning of their career with therefore very limited experience.

There are therefore clear risks in relation to allowing trainee solicitors, paralegals and in particular other fee earners to conduct litigation where there is no adequate supervision or monitoring.

The risks of inadequate supervision

An ironic feature of the facts in Mazur that the individual in question, a Mr Middleton, required supervision in any event. He had been suspended as a solicitor. His employment by the firm acting was subject to conditions, which included specified supervision. At the time of the relevant litigation he was styled ‘Head of Commercial’. A Witness Statement had been served from a Mr Ashall, who was a director of the company which owned the firm of solicitors. He indicated that he was the authorised person for the purposes of the relevant litigation. He also stated that he monitored and supervised Mr Middleton in accordance with the conditions specified by the Law Society.

Having determined that things could go on as before, the Court of Appeal simply stated that the issue in relation to adequacy of monitoring and supervision was one for the regulator. So the real issue was kicked  into the forensic long grass.

The role of the Solicitors Regulation Authority

Whether the risks discussed can be reasonably managed is dependent on the performance of the regulator. No reference is made in the Judgment as to the very poor performance of the relevant regulator – that is the SRA – over a long period.  They have signally failed in much more significant areas of risk than the monitoring and supervision of unauthorised individuals.

Can regulation keep pace with modern litigation?

It is also relevant to consider that such guidance as is given is vague. The SRA and other relevant bodies are to review their guidance.

The enforcement of such guidance is intrinsically problematic. Whilst I have no reason to doubt the unchallenged evidence of Mr Ashall, it is relevant to note that this is a situation where the individuals who would be aware of whether the monitoring and supervision was appropriate would have no incentive to indicate otherwise.

It is difficult to be confident about improved regulation in this area.  The approach of regulators appear to focus on high-level solutions. Coincidentally, with the decision in Mazur, the Legal Services Board published its final statement of policy on ‘Upholding Professional Ethical Duties’.  In that, it indicated that the individual regulators will need to put “professional ethical duties” at the heart of how lawyers are expected to behave.

They identified three key areas, more consistent education and training in ethics, clearer and more practical regulatory guidance and stronger workplace support for lawyers and upholding standards. It remains to be seen how much more clarity and rigour is brought into guidance and regulation. It is hard to see this having any impact in the sausage factories of mass litigation soon.

Questions around regulation, legal ethics and access to justice deserve continued scrutiny. Further commentary and analysis can be found throughout my website.